March 06, 2012 Articles

Books Every Young Appellate Lawyer Should Own and Use

Any young lawyer wishing to focus on appellate practice should check these books out.

By Dennis Owens

To start, here is a list of the books that every young lawyer who wishes to focus on appellate practice should have.

  • Eugene Gressman, et alia, Supreme Court Practice, 2007, Ninth Edition, 2009, BNA
  • Mayer Brown, Federal Appellate Practice, 2008, BNA
  • Bryan A. Garner, The Elements of Legal Style, Second Edition, 2002, Oxford University Press
  • William Strunk and E.B. White, The Elements of Style, any edition, 1972, et seq., Macmillian
  • Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Second Edition, 2003, West
  • Michael E. and Jane B. Tigar, Federal Appeals: Jurisdiction and Practice, Third Edition, 1999, West
  • Justice Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges, 2008, West
  • David G. Knibb, Federal Court of Appeals Manual, Fourth Edition, 2000, West
  • Girvan Peck, Writing Persuasive Briefs, 1984, Little, Brown
  • Kenneth F. Ripple, Constitutional Litigation, 1984, Michie
  • John G. Koeltl and John Kierman, editors, The Litigation Manual: Special Problems and Appeals, Third Edition, 1999, ABA
  • Anne Marie Lofaso, editor, A Practitoner’s Guide to Appellate Advocacy, 2010, ABA
  • Steven Wisotsky, Professional Judgment on Appeal: Bringing and Opposing Appeals, Second Edition, 2009, Carolina Academic Press
  • Frederick Bernays Wiener, Effective Appellate Advocacy, Revised Edition, 2004 ABA

But there are two more books that deserve a more in-depth treatment. The first is:

Steven Alan Childress and Martha S. Davis
Federal Standards of Review, Fourth Edition, Three Volumes
Lexis Nexis Publishers, 2010

This set of books began its life in 1986 simply as Standards of Review. Professor Childress teaches law at Tulane, and Professor Davis teaches at the Thurgood Marshall Law School of Texas Southern University in Houston. Volume one provides an overview of the concept and process of appellate review and then covers the standards of review in civil cases. Volume two is devoted to the standards in criminal and post-conviction remedies cases. Administrative appeals are addressed in volume three.

Luther Mumford points out that the U.S. Supreme Court in 1993 added a new rule, now numbered 28(a)(9)(B), to the Federal Rules of Appellate Procedure. That rule requires that every principal brief filed in federal appeals courts contain “for each issue, a concise statement of the applicable standard of review. As Luther says, that caused this treatise to become a “must buy” for any lawyer who wanted quick access to a remote subject. (The Appellate Advocate, 2011, No. 2).

The existence of this treatise is rooted in the notion that the function of appellate courts is not to try cases de novo. Instead, appellate courts review the work of trial courts. To review means to study the trial court’s decision and the record of the process to see if the facts were fairly determined and if the law was correctly applied to those facts. The appellate courts say that they do not determine the facts anew. But, to approve the trial court’s process of fact finding as fair, it is necessary to find that the factual conclusions are sufficiently reliable. Inherently, the appellate courts do find facts, but they do so in a binary mode. Yes, the trial court had a sound basis when it found this to be true. Or, no, the trial court was unfair in considering this or in refusing to consider that and, thus, its findings are unreliable. When the answer is no, the appellate court does not determine the facts. Rather, the case is remanded for a re-determination of the facts by the trial court.

Trial courts must determine facts because the law does not operate in a vacuum. The law may exist in the abstract, but the law must be applied to the realities of life. The other questions on appeal are whether the proper rule of law was applied to the facts, and whether the rule was applied in the proper fashion. The appellate courts use the entire seamless web of the law to deal with these questions.

The appellate courts review many decisions of many natures from a variety of forums. The law applied may be state or federal, and it may need to be applied to a question of first impression. Federal courts may have to find the state law that applies to these facts when the state’s courts have never determined that law. Some decisions coming for review are said to be “purely legal.” Many others involve a disputed method for determining disputed facts. These many decisions of differing types must be judged differently. The differences in judging are “the standards of review.” In a sense, the standard of review is a measure of the deference that the appellate court shall give to the trial court.

For the appellate practitioner, the standard of review is the name of the game. One cannot present a case—or even evaluate a case—without a firm grasp on exactly what the appellate court will be doing. Only when you know the court’s approach will you know what you have to do on appeal.

Most treatises on appellate practice attempt to address the standards of review. A review of the literature reveals that this treatment is often brief or even cursory. Few works devote as much as a full chapter to the subject. Because the analysis of a potential case for appeal begins with determining the standard of review, the Childness and Davis treatise is most useful. It is thorough, comprehensive, and fairly well written. Its treatment is in great depth, and it is highly reliable. It is well-organized and relatively easy to use. Our use of it for decades has been consistently satisfactory. We recommend it to the appellate practitioner.

Bryan A. Garner
Garner’s Dictionary of Legal Usage,Third Edition
Oxford University Press

This edition reflects a name change. The book was originally entitled A Dictionary of Modern Legal Usage, which was intended to call to mind H.W. Fowler’s seminal work, published in 1926, with a second edition, a revision by Sir Ernest Gowers, in 1965. Fowler’s work was the sun of the intellectual solar system of those who write on writing well. Burchfield, Bernstein, and Safire turned their faces to Fowler for light. When any disagreed with Fowler, they always explained how and why. The original title of Mr. Garner’s book spoke of high aspirations, which it ably fulfilled.

This is not a law dictionary. It is a work on how to write legal English in a clear manner. The entries are alphabetically arranged, but the treatment of each is often more conversational than merely definitional. A number of times, the entries report the correct meaning of a term and several mistaken senses in which the word or phrase has been used. Many of the entries are short essays on word usage in legal writings. These articles are polished gems.

The book is a pleasure to read. It makes its subject interesting. You will likely pull this book off the shelf to look up one item and find yourself drawn to reading another item and then another. Mr. Garner became the star of a smaller galactic system with this witty, insightful, and beautifully written usage dictionary. His work reflects great erudition, skill, and good taste. Mr. Garner is authoritative, but he is also sensible, amusing, and even charming. The titles of some of the articles are fascinating. We began reading them just to learn what they mean: anfractuosity, doublets and triplets, jargonmongering, hypallage, psittacism, zeugma, and paraleipsis. We are constantly learning something useful and having fun in the process. We keep this book near our desk because it is extremely useful, easy to use, utterly reliable, and clearly written.

This third edition has 800 new entries and countless enhancements to older entries. Now, many entries include illustrative notations with citations to the court opinions and books. The bibliography is expanded. There is more material in the areas of intellectual-property law and immigration law, and more use of British English sources. There is a new feature on modes of interpretation (which sound less threatening than “hermeneutics”).

This new edition is a treasure for any working appellate advocate. It is invaluable as an authoritative guide to American legal usage. It is scholarly and is bolstered by a tremendously wide range of resources: court opinions, law-review articles, treatises, and reference books. This book is useful to a degree that few other books for lawyers can achieve. The fine distinctions that it sometimes makes are presented thoughtfully, clearly, and with great common sense. It is persuasive because it is highly knowledgeable, realistic, and very intelligent.

Some of our favorite features include:

Issue Framing. This entry is a very good example of the value of this book. The entry is not a dictionary item, nor is it concerned with grammar. It focuses on clear writing by guiding the reader to clear thinking about issues. Mr. Garner has invaluable advice for the appellate advocate: how to frame the issues in every case so you increase the likelihood of winning. For an appellate lawyer, this entry alone is worth the price of this book.

Words of Authority. This is a perceptive and wise essay on the proper and improper uses of the word “shall” in legal documents and statutory drafting. We will not attempt to convey the lessons contained in this seven-page entry, but we will say that it is brilliant. It is thoughtful, succinct, erudite, and eminently practical.

Remote Relatives. This refers to the separation of the relative pronoun (that, which, who) from its antecedent that may cause confusion with the reader as to what the descriptive clause refers. (The term “remote relative” is an example of Garner’s playful use of language.) The entry incorporates 17 examples of sentences continuing such separation. These examples come from a variety of sources, including Lon Fuller. It also provides us with Mr. Garner’s “possible revision” of these examples. These revisions consistently eliminate the confusion. The entry contains no lecturing or abstruse grammatical analysis. Before it shows us ways to avoid a problem, it makes us aware of the problem. This awareness becomes part of what we bring to our writing. Our writing becomes more clear.

With the publication of Garner’s Modern American Usage (now in its third edition, Oxford, 2009), Mr. Garner has eclipsed H.W. Fowler. There is a new sun. The skies of American writing are now much brighter and clearer. The proper name of Fowler’s original work was A Dictionary of Modern English Usage. When Oxford published Gowers’s edition, the spine read Fowler’s Modern English Usage. Likewise, the first edition of this book was entitled A Dictionary of Modern Legal Usage. The modification of the title to add Mr. Garner’s name is significant.

Keep a copy of this book where you write your briefs. You will use Garner’s Dictionary of Legal Usage again and again, with confidence and delight.

This is indeed one of the best books ever written for lawyers.

Keywords: litigation, appellate practice, books for lawyers, Bryan Garner, Federal Standards of Review, Dictionary of Legal Usage

Dennis Owens practices appellate law in Kansas City, Missouri.


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